University College Cork’s insurer Aviva is considering an appeal to the Supreme Court against a court ruling which held that the Electricity Supply Board is not liable for extensive flood damage to college buildings during the 2009 Cork flood.
Last month, in what was a significant ruling, the three-judge Court of Appeal overturned a 2015 High Court finding that the ESB was 60% liable in respect of flooding and warnings.
Days later, UCC was left facing a massive legal bill running to millions of euros after the Court of Appeal granted the ESB full costs of the legal battle.
The court, however, put a stay on the matter in case there is an appeal of the decision on the main action to the Supreme Court.
Aviva confirmed last night that following detailed consideration by its legal team of what was a complex and lengthy Court of Appeal judgement, it is now considering an appeal to the Supreme Court.
Such appeals are granted when matters of general public importance are involved.
Any such appeal must be lodged by May 15.
At that point the Court of Appeal has three months to consider the validity of the appeal.
The entire legal process could take a number of months.
The ESB operates two hydro-electric dams on the River Lee, upstream of Cork city.
In a subrogated claim brought in 2015 on behalf of its insurer Aviva, UCC had claimed the ESB’s management of water releases from the two dams on the River Lee led to significant unnecessary additional flooding which caused substantial damage to 29 buildings on the UCC campus.
Aviva sought some €20m damages for losses at UCC, plus another €14m for losses suffered by other property owners.
It was claimed that warnings of heavy rainfall were issued by Met Éireann for the river Lee catchment area on November 12, 15, and 18, 2009, but that the ESB failed to adequately respond, that water levels at the reservoirs were kept at levels too high for the rainfall expected, and that there was inadequate storage capacity for flood mitigation.
Following a 104-day case, the first of its kind in Ireland to fully test the liability of a dam operator, the High Court held that the ESB was 60% liable for the flood damage to UCC.
But last month, the Court of Appeal said that the High Court judgment, if it was allowed to stand, would represent a “significant alteration” in the existing law of negligence and nuisance that would be contrary to the statutory mandate of the ESB in respect of electricity generation.
It said it would “not be consistent with reason and justice”.
The damage arose “from a natural event”, the ESB did not cause the flooding of UCC’s buildings and it had no legal duty to avoid unnecessary flooding, the court ruled.
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